Bradenton Beach lost round two in its battle to keep development from two beachfront properties in the 1400 block of Gulf Drive.

The Florida Second District Court of Appeal has overturned a lower court decision that endorsed Bradenton Beach's action in rejecting construction of two duplexes, and stated that the development can proceed.

Co-developers for Island Inc. and Beach Development Inc. appeared before the city in early 2000, seeking approval to build the duplexes on the Gulf of Mexico across Gulf Drive from the Bermuda Bay condominiums.

The city's planning and zoning board approved the projects. City commissioners denied the request in April 2000. The developers filed a lawsuit against the city, citing that the denial was not made with "substantial, competent evidence."

The crux of the issue was a land-use map adopted by the city commission in 1989 that called for that part of the beach to be preserved due to an unusual soil composition. Developers brought forward expert witnesses who said the beach there was no different than the beaches up and down the Island and that the "conservation" designation was in error.

City commissioners disagreed, citing previous erosion trends in that section of shoreline that had at one point left only a few yards of sand between Gulf Drive and the Gulf prior to a 1992-93 beach renourishment project.

Developers took the matter to court and, in April 2003, Judge Charles Williams of the 12th Judicial Circuit Court ruled in favor of the city. He wrote, in part, that:

"It is the court's view that ... the evidence presented in this case supports the city's denial of the requested plan amendment. To be sure, some evidence was presented in support of the petitioner's argument that the Future Land Use Map was drawn in error in the area in question, and that the boundary of the preservation area was meant to coincide with a soil map depicting certain type of sand located on the beach parcels in question.

"The city's planner reached this conclusion in his staff report to the planning and zoning commission, which voted to approve the plan amendment. However, neither the planner nor the planning and zoning commission are the ultimate arbiters of what is now recognized as the legislative determination of whether a proposed plan amendment is consistent with an adopted comprehensive plan. That is the province of the city commission, whose decision to deny the petitioner's small-scale plan amendments was a fairly debatable exercise of their legislative authority."

The matter was appealed by the developers and, in a June 23, 2004, opinion, Court of Appeals Judge James W. Whatley said in the majority ruling that the lower court was in error.

"The trial court erred in finding that, based on the evidence that was before the city commission at the public hearing on the appellants' petition, the city's denial of the appellants' petition was fairly debatable," Whatley wrote.

"The appellants presented expert testimony, including from the city's own land planner, showing that the designation of the appellants' property as preservation was erroneous because the property did not meet the definition of preservation. They also presented evidence, and the trial court found that Manatee County had taxed the property as R-3, i.e., residential property, and the mayor's son had been issued a license to operate a sailboat rental business on the property, which activity is not allowed on preservation property."

Whatley continued that city testimony to block the development "presented no testimony rebutting the expert testimony that the property did not meet the definition of preservation."

Judge Darryl Casanueva, in a dissenting view of the majority, raised the issue of legislative intent.

"This court should consider whether the city presented any evidence, beyond a fair debate, that its decision to maintain the status quo in the land use plan was 'reasonable from a planning, economic, environmental and fiscal responsibility standpoint.'

"Thus, appropriate evidence before the city and the circuit court could and did include other aspects of the city's legislative decision to deny the amendment, such as its legitimate interests in keeping the area undeveloped to accomplish its goals of diminishing beach erosion, minimizing flooding, preserving dune systems, encouraging the renourishment of its beaches, maintaining open areas, controlling traffic in the event of major storms, and limiting property damage from potential flooding."

Greg Hootman, who argued the case on behalf of Bradenton Beach, said "the city is obviously disappointed in the court's ruling and is evaluating its further appellate remedies." Those "remedies" are expected to be discussed by the city commission at its July 1 meeting.

Attorney John P. Harllee, representing Island Inc. and Beach Development Inc., said "the effect of the ruling of the appellate court is the city will have to grant an amendment to the city's comprehensive plan and approve the building and zoning."

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